If only part of the purchase-money be paid by the principal, there will result a trust only pro tanto.1 Property conveyed to one, in consideration of funds belonging jointly to himself and another, is held in trust for the latter to the extent of his part of the funds.2 The doctrine that a resulting trust may arise upon payment of part of the purchase price prevails however only where the part-payment was made for some specific part or distinct interest in the estate; that is, for a specific share, as a tenancy in common or a joint-tenancy of one-half, one-quarter, or other particular fraction of the whole; or for a particular interest, as a life estate or tenancy for years, or remainder in the whole. A general contribution of a sum of money toward the entire purchase is not sufficient.3 Again a trust will result in favor of one for whom the actual purchaser agreed to buy and hold, though the money paid for the land was loaned by the trustee to the cestui que trust for the purpose of the purchase. And, upon a dispute between the two as to whose money was used in effecting the purchase, the cestui que trust may show by parol that though the money, or part of it, was paid over to the grantor by the grantee, the sum so paid was paid on a loan for the alleged cestui que trust.4 The second class of cases, to wit, where A gives money or property to B, to be used in whole or in part for C, or for A himself, will now be considered. The general rule of law may be thus stated: Whenever a gift, devise, bequest, or other ben 1 Wray v. Steele, 2 Ves. & B. 388; Botsford v. Burr, 2 Johns. Ch. 405, 410 (both cases doubting a dictum in Crop v. Norton, 2 Atk. 74, 9 Mod. 233, by Lord Hardwicke); Cecil Bank v. Snively, 23 Md. 261; Case v. Codding, 38 Cal. 191; Buck v. Swazey, 35 Maine, 41. 2 Buck v. Swazey, supra. 119; Buck v. Warren, ib. 122, note; Crop v. Norton, 2 Atk. 74; Sayre v. Townsends, 15 Wend. 647; White v. Carpenter, 2 Paige, 217; Perry v. McHenry, 13 Ill. 227; Baker v. Vining, 30 Maine, 121. The case of Jenkins v. Eldridge, 3 Story, 181, was doubted and distinguished in McGowan v. McGowan. 4 McDonough v. O'Niel, 113 Mass. 8 McGowan . McGowan, 14 Gray, 92; Kendall v. Mann, 11 Allen, 15. efit is conferred upon a volunteer upon his promising, actually or virtually, to hold the same in whole or in part for a third person, or in England for the grantor, a trust arises accordingly, by operation of law, as in the first class of cases, and, if the promise is not fulfilled, the courts will enforce the trust. The ground assumed in support of this rule, in the United States, appears to be that the grantee or devisee is charged with a trust, not because of the promise, though that was contemporaneous with the gift or bequest, but because by means of the promise he obtained the property or benefit." That is, the trust arises by implication of law' strictly, and not by agreement of the parties; though this of course overlooks or disregards the fiduciary relation of the parties, which would probably be considered sufficient in England to raise a trust.3 But whatever the true ground of the rule, it is clear that a person who receives land upon a parol promise to hold it for the benefit of a third person may be compelled, at the suit of such third person, to convey the intended interest.1 A somewhat more difficult question arises where with such person there is associated another, who claims that he had no knowledge or intimation at the time of the execution of the deed or will, or before the death of the testator, of such intended trust. Parol evidence however, though amounting to no more than strong inference of knowledge of the trust, has been held admissible in a case in which a will in favor of two devisees had been advised and drawn upon the suggestion of one of the two who fully admitted the trust. The case 1 Russell v. Jackson, 10 Hare, 204; Tee v. Ferris, 2 Kay & J. 357; Jones v. Bradley, L. R. 3 Ch. 362; McCormick v. Grogan, L. R. 4 H. L. 82; Kendall v. Mann, 11 Allen, 15; Glass v. Hulbert, 102 Mass. 24; Gaither v. Gaither, 3 Md. Ch. 158; Hooker v. Axford, 33 Mich. 453; Overton v. Tracey, 14 Serg. & R. 326; Wolford v. Herrington, 74 Penn. St. 311. 2 Glass v. Hulbert, supra. 8 Comp. Heard v. Pilley, L. R. 4 Ch. 548. There is probably no distinc tion between a general or continuous fiduciary relation and one existing only for the purpose of a single act. See ante, p. 262. 4 Hooker v. Axford, 33 Mich. 453. 5 Ib. does not go to the extent of allowing evidence of a trust in regard to the refusing devisee, where there was no evidence of his knowledge of the alleged intention of the testator. Clearly the knowledge of one would not be the knowledge of the other, in the absence of an agency.1 The act of the devisee in claiming to hold the property, notwithstanding the admission of his co-devisee, would not be a fraud. Fraud in such cases arises only when the devisee has consented to hold in trust; such consent being presumed to be the reason for omitting the declaration of trust from the will. In England the trust will arise as well in favor of a grantor as of a third person. Thus it is held that where a deed, though untruly purporting to have been executed for value, has been executed upon the faith of an oral promise that the grantee will hold the land for the grantor, a trust arises within the meaning of the statute, assuming that the purpose of the conveyance was not unlawful.2 That is, the relation created by the undertaking is enough. Here again the rule is different in this country. Whether the courts have overlooked or have disregarded the general principle of constructive fraud in fiduciary relations, it is generally laid down in the United States that a trust in favor of a grantor cannot be created, under the Statute of Frauds, by a mere oral promise of the grantee to hold the land for the grantor, though there was in fact no consideration for the conveyance, if the instrument purport, by sufficient recitals, to have been executed for valuable consideration. In the case just cited it is conceded that the rule would be different where the conveyance had been made to a third person by money of 1 Tee v. Ferris, 2 Kay & J. 357. 2 Haigh v. Kaye, L. R. 7 Ch. 469; Childers v. Childers, 1 De G. & J. 482; Davies v. Otty, 35 Beav. 208. 8 Blodgett v. Hildreth, 103 Mass. 484; Walker v. Locke, 5 Cush. 90; Squire v. Horder, 1 Paige, 494; Phil brook v. Delano, 29 Maine, 410; Farrington v. Barr, 36 N. H. 86; Graves v. Graves, 29 N. H. 129; Rogers v. Simmons, 55 Ill. 76; Merritt v. Brown, 6 C. E. Green, 401. 4 Blodgett v. Hildreth, supra. the plaintiff, on the ground that in such a case the plaintiff, not being a party to the deed, would not be estopped by its recitals or covenants from proving the facts in regard to the trust. There must be something capable of being treated as a fraud, aside from the breach of promise, where the grantor sets up the parol trust. In regard to the third class of cases it is held by most of the courts of this country that parol evidence is admissible to show that an absolute conveyance was in fact intended as a security for a sum of money loaned or other obligation incurred or due at the time the deed was executed; and equity will compel the grantee to respect this intention, and to reconvey the premises upon tender of the amount of the debt.1 And this is true whether the omission was by fraud on the part of the grantee, or by design, upon confidence reposed by the grantor in the grantee; 2 though this position has not been accepted by some courts.3 For the breach of a parol agreement to reconvey the premises upon payment of the debt thus secured, whether the omission was effected by fraud or was by design, is as much a fraud' as would be committed by an agent's refusing to convey to his principal, whose money had been used 1 Hodges v. Tennessee Ins. Co., 8 N. Y. 416; Despond v. Walbridge, 15 N. Y. 374; Taylor v. Luther, 2 Sum. 228; 4 Kent, 143. 2 Taylor v. Luther, 2 Sum. 228. 3 It is held in several of the States that in order to convert a purchaser who takes a deed absolute on its face into a trustee for another, and to convert the conveyance into a mere security for money loaned or advanced, it must be alleged and proved that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage; and the intention must be established by facts dehors the conveyance, which are inconsistent with an absolute conveyance. Glisson v. Hill, 2 Jones, Eq. 256; Brothers v. Herrill, ib. 209; Cook v. Gudger, ib. 172; Lowell v. Barrett, Busb. Eq. 50; Brown v. Carson, ib. 272; Clement v. Clement, 1 Jones, Eq. 184; Briggs v. Morris, ib. 193; Lamb v. Pigford, ib. 195; Taylor v. Taylor, ib. 246; Franklin v. Roberts, 2 Ired. Eq. 560; Kelly v. Bryan, 6 Ired. Eq. 283; Thomas v. McCormick, 9 Dana, 108. See Shay v. Norton, 48 Ill. 100; Kent v. Lasley, 24 Wis. 654. An absolute bill of sale of goods cannot at law be shown to have been intended as a mortgage or other security. Harper v. Ross, 10 Allen, 332. Secus, of a bill of parcels. Ib.; Hildreth v. O'Brien, ib. 104. in the purchase, or by a person's refusal to convey an estate which he has bought under foreclosure for the benefit of the mortgagor for whom he has promised to buy. The trust will follow the estate into the hands of all purchasers with notice, and of volunteers. A father having made a voluntary gift to his daughter afterwards sought to defeat the same, and to this end had the property levied upon and sold for his debts. It was bought in by his agent, and under the father's direction was conveyed to other children of his. Such children were declared trustees for the daughter.1 A resulting trust further will survive against an heir of the trustee, and the heir may be compelled to convey.2 A resulting trust will not arise however where the effect would be to accomplish a violation of law. Thus if A cannot by law acquire title to certain property, the law will not raise a trust in his favor if he put money into the hands of B with which to buy the property in the latter's name, which B does so buy.3 § 11. SURPRISE. The last subject to be presented under the first division of constructive fraud is Surprise. This, as we have seen, is the case in which a person has been taken unawares, or has acted in an emergency under sudden and confused impressions.4 All this may have taken place without fraud in the opposite party; it is the taking advantage of it afterwards which the law reprobates. Such subsequent misconduct is a constructive fraud. But in truth'surprise' is a term of very indefinite application; about all that can be said of it, in connection with the definition, is that the courts will give relief upon this ground though there be no real fraud in the transaction.5 It applies 1 Uzzle v. Wood, 1 Jones, Eq. 226. 2 Brown v. Dwelley, 45 Maine, 52. 3 Alsworth v. Cordtz, 31 Miss. 32. 4 Ante, p. 13 ; 1 Story, Equity, § 120, note. Evans v. Llewellyn, 1 Cox. 340; |